Summary: There were communication failures in respect of Mr X’s needs and a failure to understand new practices which led to a delay in moving him to a nursing home in his home area. There were also failures to communicate properly with Mr X’s wider family. The Council agrees to offer Mr X and Ms A payments in recognition of the distress and anxiety caused.

The complaint

1. Ms A (as I shall call her) complains the Council failed to communicate properly with Mr X’s family, communicated instead with his ex-partner, and then delayed in arranging a move back to his home are because of a misunderstanding of his needs.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered the information provided by the Council and by Ms A. I spoke to Ms A. Both the Council and Ms A had an opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
6. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there.
7. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment.
8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
9. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
10. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’.
11. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined.

What happened

12. Mr X lived in South Gloucestershire for some years with his then partner. He developed cognitive impairment and was assessed by the Council in 2020 as lacking capacity to make decisions about his care and support, and managing his finances. At that time his partner was content to assist with his care, and with managing his finances. Mr X and his partner refused assistance with support despite admitting being under some strain in 2021.
13. Mr X’s needs continued to increase and by 2022 his partner said she could no longer manage his care. Mr X was admitted to hospital for assessment in November 2022 on section 2 of the Mental Health Act 1983 after an attack on his partner. Ms A says neither she nor Mr X’s sister (both of whom live in his home county of Cumbria) were contacted about his admission.
14. In January 2023 a social worker assessed Mr X’s capacity to make decisions about his care and support. She concluded he lacked capacity. Her assessment shows he understood the information given but could not retain it long enough to weigh up and make a decision.
15. A Best Interest meeting (which Ms A and Mr X’s sister attended) was held to consider Mr X’s future care and accommodation. Mr X had expressed a wish to ‘go home’ to Cumbria and Ms A said his family would visit him regularly there. It was agreed that it was in Mr X’s best interests “to be discharged to specialist dementia residential placement in Cumbria (close to his family) where his needs can be met and he will be safe.”
16. The Council’s records show the social worker contacted Ms A on 19 January. She sent Mr X’s financial paperwork so Ms A could apply for deputyship. She said the finance team suggested Ms A also apply for appointeeship with the DWP so that Ms A could manage Mr X’s benefits in the meantime. She gave details of the 11 care homes she had contacted for a placement. Ms A says the social worker gave her incorrect information about applying for a deputyship.
17. The social worker wrote to Ms A again the next day and explained that funding had been agreed by the Council for a residential placement in Cumbria. She said this would be funded until Ms A had access to Mr X’s funds when the Council would reclaim the funding as Mr X would be able to fund his own care at first. She said after that Mr X would become ‘ordinarily resident’ in Cumbria.
18. By the end of January a number of homes had approached the hospital ward and were unwilling to offer a placement as Mr X’s needs were said to be greater than could be managed in a residential setting. Ms A wrote to the social worker and said, “Now that we are looking towards a placement in Nursing care I would be grateful if you would check his eligibility for continuing health care prior to discharge and for his ongoing care. I would like to be involved with the checklist and would be grateful for a copy for his records”. The social worker told Ms A they would not assess Mr X while he was in hospital and this would have to be something she arranged once he was in a nursing home.
19. A nursing placement was agreed for Mr X on 7 February. The Council finance team was asked to carry out a sustainability check before the contract was finalised.
20. The social worker contacted the finance team in March. She said Mr X had been medically fit for discharge for some weeks and she was in real danger of losing the placement unless she could confirm it.
21. The Council’s records show that there was subsequently a delay before the care home in Cumbria signed and returned the contract to the Council so that Mr X’s transport could be arranged to Cumbria. A social worker spoke to Ms A on 14 March to apologise for the delay and update her. He said the contracts had not been properly signed off by the care provider which was causing a delay in arranging the move. Ms A said she was unhappy about the whole process (although she said the previous social worker had been very good), was frustrated with the time taken and unhappy that no-one had explained to her why Mr X had been placed on section 2 MHA again.
22. The social worker alerted the mental health practitioners about Ms A’s concerns. He said it would have been remiss of the Council to proceed without the correct contracts in place, but in addition there were concerns about the way in which the mental health workers had communicated with the family.
23. Mr X moved to the care home on 13 March.
24. In May the care home contacted the Council about completing a CHC assessment checklist. Ms A says there were delays in the CHC assessment because the home referred Mr X to Cumbria CHC. She says eventually South Gloucestershire Trust admitted that they were responsible for CHC assessment, and he was assessed by their team.

The complaint

25. Ms A contacted the Council again in April with concerns about the delays and the way the placement had been arranged. She said she had always said her father required a nursing placement but the social worker had pursued a residential placement for some months. She said there were now delays in arranging a CHC funding assessment for Mr X. Ms A also said she believed the Council had prioritised communications with Mr X’s previous partner over communication with his family.
26. The manager who spoke to Ms A agreed to investigate and respond. Officers met to discuss concerns and consider how the Council could communicate better in future with wider family. The meeting also noted that the CHC team would not now screen for CHC eligibility while a service-user was in hospital: this was a new approach which the Council had not been informed of before.
27. The team manager wrote to Ms A. She agreed there had been unnecessary delays in the process and apologised. She said that the Council had to follow due process in respect of the contract with the care home but added that the confusion over CHC screening (which she believed should have been completed in hospital), as well as Mr X’s deterioration, had caused some further delays. She said the Mental Capacity assessment undertaken in 2020 had involved consulting the people Mr X was living with at the time. She said in future the team would be reminded to consult more widely with families.
28. Ms A replied. She said the Council had delayed in assessing Mr X in late 2022; had insisted on looking for a residential placement when it was clear he had nursing needs; one social worker had told her Mr X would not be eligible for CHC, the other had said it would be up to Cumbria to assess him once he moved. She also said it had been quite wrong of the Council to continue to regard Mr X’s ex-partner as his nearest relative when she refused to look after him anymore and did not visit him in hospital. She said if the Council had acted in accordance with the guidance it would not have taken so long to reach the current situation.
29. The service manager responded to Ms A. She acknowledged the delays which had been caused by insufficient awareness of CHC policy, and indecision about the type of placement required. She accepted that the three months waiting for the contract with the care home in Cumbria would have seemed very long to Mrs A and Mr X.
30. Ms A remained dissatisfied. She said the delays which the manager had identified were still largely unexplained. The Council responded. It reiterated its acknowledgement of the delays in arranging a suitable placement and its apology. It noted it could not have formalized the placement until the contract was properly signed. It added, “It is vital that we are satisfied that the nursing home offers the appropriate levels of quality and can provide the appropriate level of care in a sustainable way.” It confirmed that a practice note would be issued to all social work practitioners in the area reminding them of the necessity to;

“Discuss deputyship and Lasting Power of Attorney arrangements with those that they are working with as appropriate.

To ensure that consideration is given to who is invited to contribute to best interest decision making seeking the individuals’ preferences around this.

To ensure that all understand the role of IMCA and when referral should be made.

To ensure that all understand change to local CHC assessment policy.”

31. In June the CHC team decided Mr X was eligible for Funded Nursing Contributions (FNC) but not CHC.

Ordinary residence

32. In September Ms A contacted the Council about her father’s financial assessment going forward. She said she calculated he would probably be below the threshold for funding his own care by December and she asked which council would be responsible. The Council replied that it would be the responsibility of Cumbria to assess; Ms A replied Cumbria had told her the Council was responsible.
33. There was discussion between the two councils over the next weeks. At the end of October an officer from Cumbria council wrote to the senior social worker at the Council. The officer said that as the Council had made a decision in Mr X’s best interests under the Mental Capacity Act to rehome him in Cumbria, his care and support remained the responsibility of the Council. Ms A asked the Council to clarify the funding as her father’s funds were running low.
34. The social worker responded to Ms A that his advice was that Cumbria was the responsible council because Mr X had been self-funding when placed there, but he undertook to refer the matter to the legal department. He assured her it would be resolved before Mr X’s funds fell below the threshold amount. Ms A says in fact it was March 2024 before this was resolved.
35. The social worker wrote to the officer in Cumbria at the start of November with reference to the statutory guidance (paragraph 16 above) confirming that Cumbria was responsible for Mr X’s care and support once he fell below the threshold amount as he was now ordinarily resident within that area, and asking them to contact Ms A.
36. Ms A complained to the Ombudsman. She said the whole process had been stressful and time-consuming, compounded by the view that the social workers involved at first only listened to her father’s ex-partner.

Analysis

37. The Council has acknowledged there were delays in arranging a placement for Mr X. Whatever the reasons for this – lack of familiarity with the area, poor recognition of Mr X’s level of need, absence of the first allocated social worker – the delay caused stress for Ms A who was principally concerned to ensure her father was appropriately placed, and was working hard personally to ensure that.
38. The Council has also acknowledged a failure to recognise new practices in terms of completion of the CHC assessment which caused some additional delays.
39. The Council was slow to include the wider family in discussions about Mr X’s care once it became clear his relationship had broken down.
40. All those faults caused injustice to Mr X personally, who remained in hospital long after he was medically fit for discharge, and to Ms A who spent a considerable amount of time pursuing progress. The Council has recognised its faults in tis respect and should offer Ms A a payment in recognition of the injustice caused.
41. The issue of Mr X’s ordinary residence, and the debate around that, did not in itself cause further injustice to Mr X although it involved Ms A in the discussion between the two councils, which caused anxiety for her. However, it is clear that the Council sought to reassure Ms A this was a matter to be resolved between the councils and would not impact on her father personally.

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Agreed action

42. The Council has already put an action plan in place for service improvements and I do not make further recommendations in that respect, except to ask the Council to provide a copy of the practice note it disseminated;
43. Within one month of my final decision the Council will offer a payment of £500 to Mr X in recognition that delay caused an extended period in hospital which was not a suitable placement;
44. Within one month of my final decision the Council will also offer a payment of £750 to Ms A for the considerable frustration and stress caused by the delays
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have completed this investigation. I find there was fault on the part of the Council which caused injustice to Mr X and Ms A, which the completion of the recommendations at paragraphs 42 to 44 will remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman